Court filing
Transcript of Sentencing Proceedings — Bern Benoit
Summary
The transcript of the September 8, 2021 sentencing proceedings for Bern Benoit in United States of America v. Bern Benoit, Docket No. 1:20-CR-00296-JPB, before United States District Judge J.P. Boulee in the U.S. District Court for the Northern District of Georgia, conducted by Zoom and filed February 2, 2024, as Document 894. The court states that Benoit pled guilty on March 11th, 2021 to Count 7, conspiracy to commit bank fraud and wire fraud, and with no objections sets a total offense level of 18 and a range of 27 to 33 months. Defense counsel Anthony O. Egbase seeks a departure and variance, arguing that adviser and co-defendant Jerry Baptiste gave Benoit a blank form that others completed and that Benoit received about 800,000. Benoit tells the court he is very remorseful.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Cite this document
“Transcript of Sentencing Proceedings — Bern Benoit.”
Original at ecf.gand.uscourts.gov, No. 1:20-cr-00296-JPB-CMS, Doc. 894. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/us-v-dixon/2021-09-08-sentencing-transcript-dkt-894/
, SHA-256 5d8d1d91ec45720c042b687f7fa36721d82d0c58139e86fe8fcfb3bba32ed2f2.Full text
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 1 of 44
THE FOLLOWING IS THE PDF OF AN OFFICIAL
TRANSCRIPT. OFFICIAL TRANSCRIPTS MAY ONLY BE FILED IN CM/ECF
BY THE OFFICIAL COURT REPORTER AND WILL BE RESTRICTED IN
CM/ECF FOR A PERIOD OF 90 DAYS. YOU MAY CITE TO A PORTION
OF THE ATTACHED TRANSCRIPT BY THE DOCKET ENTRY NUMBER,
REFERENCING PAGE AND LINE NUMBER, ONLY AFTER THE COURT
REPORTER HAS FILED THE OFFICIAL TRANSCRIPT; HOWEVER, YOU ARE
PROHIBITED FROM ATTACHING A FULL OR PARTIAL TRANSCRIPT TO ANY
DOCUMENT FILED WITH THE COURT.
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 2 of 44
1
1 UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
2 ATLANTA DIVISION
3
4 UNITED STATES OF AMERICA, )
)
5 )
-VS- ) DOCKET NO. 1:20-CR-00296-JPB
6 )
BERN BENOIT, )
7 )
DEFENDANT. )
8
9 TRANSCRIPT OF SENTENCING PROCEEDINGS
BEFORE THE HONORABLE J.P. BOULEE
10 UNITED STATES DISTRICT JUDGE
SEPTEMBER 8, 2021
11
12
13
14 APPEARANCES:
15 ON BEHALF OF THE GOVERNMENT:
TAL COHEN CHAIKEN, ESQ.
16 NATHAN PARKER KITCHENS, ESQ.
BABASIJIBOMI MOORE, ESQ.
17 ASSISTANT UNITED STATES ATTORNEY
18
ON BEHALF OF THE DEFENDANT:
19 ANTHONY O. EGBASE, ESQ.
20
21
22
23 STENOGRAPHICALLY RECORDED BY:
24 PENNY PRITTY COUDRIET, RMR, CRR
OFFICIAL COURT REPORTER
25 UNITED STATES DISTRICT COURT
ATLANTA, GEORGIA
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 3 of 44
2
1 (PROCEEDINGS HELD VIA ZOOM AT 10:19 AM., ATLANTA, GEORGIA)
2 COURTROOM DEPUTY CLERK: This is case number
3 20-CR-296, USA v. Benoit.
4 MR. EGBASE: Good morning, your Honor. Anthony
5 Egbase on behalf of Mr. Bern Benoit. Bern Benoit is present
6 with me as the Court can see via Zoom.
7 THE COURT: Good morning to both of you.
8 MR. KITCHENS: Good morning, your Honor. Nathan
9 Kitchens on behalf of the government. I'm here as well with
10 co-counsel Tal Chaiken and Siji Moore, as well as Special
11 Agent Joe Stites of the FBI.
12 THE COURT: Good to see all of you as well.
13 And I believe we also -- we have Officer Ridley here
14 as well, correct?
15 COURTROOM DEPUTY CLERK: Yes, sir.
16 MS. RIDLEY: Good morning, your Honor. Maria Ridley
17 on behalf of the United States Probation Office.
18 THE COURT: Good morning.
19 All right. Under Section 2 of the Northern District
20 of Georgia's General Order 20-04, the Court finds that this
21 hearing cannot be further delayed without serious harm to the
22 interests of justice.
23 And, Mr. Egbase, do I understand that your client
24 consents to waiving his personal appearance before me and
25 doing this hearing by video conference?
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 4 of 44
3
1 MR. EGBASE: Yes, your Honor, he does. And if I may
2 just apologize, I know we are having difficulty this morning
3 through video conference. It's all my fault. I feel
4 terrible. It has absolutely nothing to do with my client.
5 I did not understand this was going to be an
6 in-person hearing. I tried to read the rules as much as I
7 can. It was the rules that started coming out -- the
8 amendments that started coming out during the pandemic, post
9 pandemic. We are still in pandemic actually.
10 I just don't know how I missed it, that this was
11 supposed to be an in-person hearing. So it has absolutely
12 nothing to do with my client, your Honor.
13 THE COURT: Okay. Very well. Well, apology
14 accepted. And, of course, I won't hold any delays or any
15 confusion against your client in any way or against you. I
16 understand we all make logistical errors. So no big deal.
17 And all is forgiven on that front.
18 Let me ask you, Mr. -- do you pronounce it Benoit?
19 THE DEFENDANT: Yes, sir.
20 THE COURT: Mr. Benoit, do you consent to doing this
21 hearing by video conference and do you waive your right to
22 have a personal appearance in front of me for this sentencing
23 hearing?
24 THE DEFENDANT: Yes, your Honor.
25 THE COURT: Very well.
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 5 of 44
4
1 Mr. Benoit pled guilty on March 11th, 2021, to
2 Count 7 of the indictment for conspiracy to commit bank fraud
3 and wire fraud.
4 In accordance with Rule 32 of the Federal Rules of
5 Criminal Procedure, the United States Probation Office has
6 conducted a presentence investigation and prepared a
7 presentence report, a copy of which has been provided to both
8 the government and the defense.
9 Mr. Egbase, have you and your client had an
10 opportunity to read and discuss the presentence report? And I
11 think you're still muted, sir.
12 MR. EGBASE: Yes, we did, your Honor.
13 THE COURT: Thank you.
14 Do you have any questions about the presentence
15 report or any amendments at this time?
16 MR. EGBASE: No questions, your Honor.
17 THE COURT: It appears from the record that there are
18 no objections to the findings of fact or conclusions of law in
19 the presentence report by the government or the defense.
20 Is that correct?
21 MR. KITCHENS: That's correct, your Honor.
22 MR. EGBASE: That's correct, your Honor.
23 THE COURT: All right. I did want to clarify,
24 Mr. Egbase, whether you are seeking a departure or a variance
25 or both. It looked to me from reading your sentencing
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 6 of 44
5
1 memorandum on behalf of Mr. Benoit that you were seeking both
2 a departure and variance, is that correct?
3 MR. EGBASE: That's correct, your Honor.
4 THE COURT: What I want to clarify is on what grounds
5 you're seeking the departure. It looked to me like there may
6 have been some just typographical issues with your sentencing
7 memorandum. The portion of it that seeks a departure on page
8 six talks about his medical condition and a departure under
9 5H1.4, which would go to his physical condition, and that all
10 made sense to me. But there is a small section at the bottom
11 of page 10 and going to the top of page 11 that seems to
12 perhaps be something that inadvertently got picked up from an
13 earlier sentencing memorandum involving another client that
14 goes to age, mental condition, military service, et cetera.
15 I just wanted to make sure that that indeed was just a
16 typographical error and that what you're seeking is a
17 departure under just 5H1.4.
18 MR. EGBASE: I'm seeking departure under 5H1.4, your
19 Honor. The Court is correct, that may have been inadvertently
20 entered. But as I state in my brief as well, my client,
21 Mr. Benoit, does have medical conditions and under that I'm
22 seeking that -- I'm seeking the departure and a variance.
23 THE COURT: Understood. Departure and variance.
24 Given that you're seeking both a departure and a
25 variance on those grounds, sometimes I'll address the
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 7 of 44
6
1 departure issue first and make a determination as to whether
2 or not a departure is warranted and then go through the other
3 portion of the sentencing hearing. But here, unless anyone
4 objects, it would seem that the request for a departure and
5 the request for the variance are overlapping fairly
6 significantly, so I would recommend that I consider all of
7 that together in the context of counsel's argument.
8 Does anyone object to my proceeding in that fashion?
9 MR. KITCHENS: No objection, your Honor.
10 THE COURT: Mr. Egbase?
11 MR. EGBASE: No objection, your Honor.
12 THE COURT: Very well. I will consider your argument
13 on that departure along with the variance when I hear your
14 argument as to the sentence.
15 Given that there are no objections, I will adopt the
16 findings of fact and conclusions of law in the presentence
17 report to which no objection has been made.
18 Based on the findings of facts and conclusions of
19 law, the guideline calculations are as follows:
20 Base offense level of 7;
21 Adjusted offense level of 21;
22 Total offense level of 18;
23 Criminal History Category of I;
24 Recommended sentencing range of 27 to 33 months;
25 Fine guideline range of $10,000 to $2,210,434;
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 8 of 44
7
1 Term of supervised release of 2 to 5 years;
2 A special assessment of $100.
3 Any objection to the guideline calculations as stated
4 by the Court?
5 MR. KITCHENS: No, your Honor.
6 MR. EGBASE: No objection, your Honor.
7 THE COURT: I will now hear from the parties as to
8 recommendations for a reasonable sentence considering the 18
9 USC, Section 3553(a) factors and grounds for departure or
10 variance as discussed.
11 I have reviewed -- in addition to the presentence
12 report and the defense memorandum I have reviewed numerous
13 character letters on behalf of Mr. Benoit sent in from various
14 individuals.
15 Before we move on, are there any other documents or
16 letters for the Court regarding sentencing for the Court's
17 consideration?
18 MR. EGBASE: No, your Honor, except I would add that
19 Mr. Benoit be given an opportunity to just address the Court
20 for about two to three minutes.
21 THE COURT: Certainly. I'm going to go through that
22 and, of course, give him that opportunity. I want to just
23 make sure we don't have any other witnesses, and I want to
24 hear arguments as well.
25 Mr. Kitchens, are there any victims present that wish
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 9 of 44
8
1 to speak or present evidence in connection with the evidence
2 in this case?
3 MR. KITCHENS: There are not, your Honor. And we do
4 not have any documents either.
5 THE COURT: All right. Very well.
6 And, Mr. Egbase, I know that Mr. Benoit would like to
7 be heard, but are there any other witnesses on his behalf?
8 And, again, I have read the numerous letters that were sent in
9 on his behalf.
10 MR. EGBASE: No, your Honor.
11 THE COURT: Mr. Egbase, would you like to make any
12 argument on behalf of your client regarding sentencing? I
13 have, of course, reviewed your sentencing memorandum on behalf
14 of him. I'll be happy to hear any additional argument that
15 you have.
16 MR. EGBASE: Yes, your Honor. I just want to
17 reiterate what I have in my sentencing memorandum already,
18 your Honor.
19 In this matter, Mr. -- I have used the term or the
20 terminology that Mr. Benoit is a victim in this case. I did
21 receive an e-mail from the government yesterday, and
22 specifically Mr. Kitchens, who took that to mean that
23 Mr. Benoit is contesting the culpability in this case. That
24 is not my intention. And that is not Mr. Benoit's intention.
25 He does accept responsibility, but I have viewed this in the
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 10 of 44
9
1 context of the fact that he was suckered into this -- into
2 this -- committing this crime based on his lack of
3 sophistication.
4 At the very inception of the PPP program Mr. Benoit,
5 as a business owner, was only interested in getting what he
6 was entitled to. And I believe that is what the evidence and
7 discovery has shown in this matter. But what happened was his
8 advisor, Mr. Jerry Baptiste, gave him a blank form from --
9 whom happens to be a co-defendant now, gave him a blank form
10 from other co-defendants that he signed. He never
11 placed anything -- other than his name, address and business
12 name, he never list any figure on the blank form. And every
13 other thing was completed by the co-defendant, submitted to
14 the appropriate agencies without his input on what was in that
15 loan application.
16 And he was shocked to learn that when he received
17 about 800,000 in his account. And he did question it. So his
18 inability to stand by his conviction at that point and tell
19 them I don't deserve this, take it back, is where the
20 culpability really comes in. And in his words, he was assured
21 that this money would be paid back and it was going to be
22 invested in his business or buying PPP, or whatever, emergency
23 equipment, and he fell for it.
24 So he's very remorseful. And I believe that he would
25 express that himself to the Court. But the other issues that
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 11 of 44
10
1 I've asked the Court to consider is his medical conditions.
2 And I believe during discovery we provided enough of that.
3 And that was also presented to the presentencing officer.
4 And his lack of sophistication -- in conclusion, his
5 lack of sophistication, his medical condition and -- his
6 present medical condition, which he has been going through, I
7 believe that that is what warrants a departure and variance in
8 this case, your Honor.
9 THE COURT: All right. Thank you.
10 Mr. Benoit, I've had the benefit of hearing from your
11 counsel, but if there's anything that you personally would
12 like to say before I sentence you, I would be happy to hear
13 from you, sir.
14 THE DEFENDANT: Your Honor, I just wanted to --
15 THE COURT: I'm sorry. If you could speak up a
16 little bit, I'm having trouble hearing you.
17 THE DEFENDANT: Your Honor, I just wanted to say I'm
18 very remorseful. This is not who I am. I don't have a
19 record. You know, I try to be -- I try to do good always.
20 And I don't know how I even got to this.
21 I have no words to express how deeply sorry that --
22 that it even happened. I got involved with people that, you
23 know, I had no idea what their intentions were. And, you
24 know, I know I'm not innocent at all. I'm just -- I'm sorry.
25 And I...
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 12 of 44
11
1 THE COURT: Thank you. I want to make sure, you've
2 just stated that you don't believe you're innocent at all, and
3 that certainly was my --
4 THE DEFENDANT: Yeah.
5 THE COURT: -- takeaway from your plea hearing
6 several months ago now. But given some of the arguments your
7 counsel has made, I want to, before we go forward with the
8 sentencing, make sure that you do, in fact, believe you are
9 guilty of the crime charged and what you've pled guilty to
10 several months ago now.
11 Do you have any reason to think you want to revisit
12 that --
13 THE DEFENDANT: No, sir, your Honor. As I said, I'm
14 guilty. I'm not innocent on my part for my involvement.
15 THE COURT: All right. Bear with me a moment.
16 COURTROOM DEPUTY CLERK: Mr. Benoit, if you can speak
17 up a little bit louder so we can hear you, okay?
18 THE DEFENDANT: Okay.
19 THE COURT: All right. Mr. Kitchens, any response
20 and thoughts on the plea and where we are at this point?
21 MR. KITCHENS: Yes, your Honor.
22 Let me start exactly with your questions about where
23 I think we stand in light of some of the arguments made by
24 Mr. Egbase and Mr. Benoit's statement.
25 As Mr. Egbase noted, we expressed some concern to him
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 13 of 44
12
1 yesterday based on some of the language in the sentencing memo
2 where there was a statement that Mr. Benoit was an unwitting
3 tool, that he was a victim in this matter, a victim of the
4 circumstances, and that he accepted responsibility for his
5 ignorantly induced conduct.
6 And similarly this morning I think you've heard that
7 he did not know what various other people were doing, just
8 submitted a blank form and did not know the overall aim of the
9 other people he was working with.
10 Our understanding when we asked Mr. Egbase about
11 this yesterday was that we understood this rhetoric from the
12 sentencing memo was designed to express that Mr. Benoit was
13 not the most culpable actor in the scheme. And the government
14 readily agrees with that, fully agrees with it.
15 As your Honor knows, we certainly view Darrell Thomas
16 as the most culpable person as he received the largest share
17 of the proceeds from this loan.
18 Mr. Benoit, as he's noted in the argument this
19 morning, was brought into the scheme by other people,
20 Mr. Baptiste, as well as Charles Petty, another individual who
21 was a co-defendant in this case. And those individuals passed
22 along instructions to Mr. Benoit regarding how he should wire
23 fraudulent funds when they were received into the account.
24 I apologize for my cough, your Honor.
25 It's my understanding that Mr. Benoit, despite that
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 14 of 44
13
1 language and despite some of the argument this morning, and it
2 may be worth clarifying with him, does not deny that he knew
3 at some point that the PPP loan that he applied for for
4 Transportation Management was fraudulent. And that once he
5 knew that and recognized it, then he continued to facilitate
6 the loan.
7 There was never an allegation that he personally put
8 in the false information, but there was an understanding and
9 certainly an agreement that that would be the case and that he
10 would proceed with the fraud. That's our understanding of
11 what the evidence showed and what Mr. Benoit, at least in the
12 plea hearing, agreed to.
13 It is also -- and we'll discuss this a little bit in
14 my sentencing argument, I think it is undisputed in the PSR
15 that he submitted roughly around the same time period a couple
16 fraudulent Economic Injury Disaster Loans for two companies
17 roughly in the same time span. So this was not an accident.
18 This was something that -- three separate fraudulent loans in
19 a very short period of time.
20 I think any claim that Mr. Benoit did not know what
21 was going on rings false in light of the evidence that, you
22 know, we have and that Mr. Benoit has previously admitted to.
23 So, you know, I'm happy to give the overall argument
24 but just want to clarify with Mr. Egbase, on behalf of his
25 client, that he still is in a position where he acknowledges
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 15 of 44
14
1 that he knew at some point that the loan that he was entering
2 was, in fact, fraudulent and that after knowing that he
3 continued to facilitate that fraudulent loan.
4 THE COURT: Mr. Egbase.
5 MR. EGBASE: Well, your Honor, if I may just add
6 regarding the two other applications that Mr. Benoit --
7 THE COURT: And I'll tell you, I'm not worried about
8 the two other applications. I'm worried just about the one at
9 issue in this case.
10 MR. EGBASE: All right. Submit then, your Honor.
11 THE COURT: I'm sorry, can you repeat that.
12 MR. EGBASE: I said I submit, your Honor. I'm done
13 at this point.
14 THE COURT: Do I take that to mean that you
15 understand that your client did indeed at some point learn
16 that the loan was fraudulent and continued to facilitate it
17 despite your argument that he was not the most culpable actor?
18 Is that correct?
19 MR. EGBASE: Yes. And I believe I hinted to that in
20 my opening as well, in my argument.
21 THE COURT: Very well. And let me ask Mr. Benoit as
22 well.
23 Mr. Benoit, do you agree that you at some point
24 learned that this loan was fraudulent and afterwards continued
25 to facilitate the loan?
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 16 of 44
15
1 THE DEFENDANT: Yes.
2 THE COURT: Very well.
3 Mr. Kitchens or Mr. Egbase, do either of you think
4 any additional discussion of this most recent issue is
5 warranted? One thing I can do is go back over the elements
6 if anyone thinks that's necessary.
7 MR. EGBASE: Yes, your Honor. The only thing I want
8 to add regarding that issue is that Mr. Benoit's conduct after
9 the loan -- after the moneys were wired into his account did
10 not benefit him substantially. He wired moneys to Baptiste
11 and Mr. Thomas, I believe, who -- and shortly after doing that
12 his account was frozen and the balance of the funds are simply
13 forfeited to the government, your Honor.
14 THE COURT: Understood.
15 Here's what I'm going to do. And, Mr. Kitchens, I'll
16 let you weigh in, but I'm actually inclined to go back over
17 the elements in an abundance of caution unless you disagree or
18 unless Mr. Egbase disagrees.
19 MR. KITCHENS: I have no objection to that, your
20 Honor.
21 THE COURT: Ms. Walker, if you can please put
22 Mr. Benoit under oath.
23 COURTROOM DEPUTY CLERK: Mr. Benoit, if you can raise
24 your right hand for me.
25 (The defendant was duly sworn)
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 17 of 44
16
1 COURTROOM DEPUTY CLERK: Thank you. Please remember
2 to speak up.
3 You can put your hand down and announce your name for
4 the record.
5 THE DEFENDANT: Bern Benoit.
6 COURTROOM DEPUTY CLERK: Thank you, sir.
7 THE COURT: Thank you, Ms. Walker.
8 Mr. Benoit, let me, again, ask you a question I asked
9 you just a few moments ago but now that you're under oath I
10 want to ask you again, do you agree that at some point you
11 realized that this loan at issue here was fraudulent and you
12 continued to facilitate the loan after you knew that it was a
13 fraudulent loan?
14 THE DEFENDANT: Yes, your Honor.
15 THE COURT: And I'm going to go back over the
16 elements of what you've pled guilty to several months ago and
17 ask you again if you agree that you're guilty based on these
18 elements.
19 So, first off, as to conspiracy to commit bank fraud
20 and wire fraud, do you admit that two or more persons in some
21 way or manner agreed to try to accomplish a common and
22 unlawful plan to commit bank fraud and wire fraud as charged
23 in the indictment?
24 THE DEFENDANT: I do, your Honor.
25 THE COURT: And do you admit that you knew the
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 18 of 44
17
1 unlawful purpose of the plan and willfully joined in it?
2 THE DEFENDANT: I do.
3 THE COURT: As to bank fraud, do you admit that you
4 knowingly carried out or attempted to carry out a scheme to
5 defraud a financial institution or to get money, assets or
6 other property from a financial institution by using false or
7 fraudulent pretenses, representations or promises about a
8 material fact?
9 THE DEFENDANT: I do, your Honor.
10 THE COURT: And do you admit that the false or
11 fraudulent pretenses, representations or promises were
12 material?
13 THE DEFENDANT: Yes.
14 THE COURT: Do you admit that you intended to defraud
15 the financial institution?
16 THE DEFENDANT: Yes, your Honor.
17 THE COURT: And do you admit that the financial
18 institution was federally insured?
19 THE DEFENDANT: Yes, your Honor.
20 THE COURT: As to wire fraud, do you admit that you
21 knowingly devised or participated in a scheme to fraud someone
22 by using false or fraudulent pretenses, representations or
23 promises?
24 THE DEFENDANT: Yes, your Honor.
25 THE COURT: Do you admit that the false pretenses,
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 19 of 44
18
1 representations or promises were about a material fact?
2 THE DEFENDANT: Yes, your Honor.
3 THE COURT: And do you admit that you acted with the
4 intent to defraud?
5 THE DEFENDANT: Yes, your Honor.
6 THE COURT: And, finally, do you admit that you
7 transmitted or caused to be transmitted by wire some
8 communication in interstate commerce to help carry out this
9 scheme to defraud?
10 THE DEFENDANT: Yes, your Honor.
11 THE COURT: Very well.
12 I believe we've sufficiently addressed the issue at
13 hand here. And I believe that Mr. Benoit continues to confess
14 and admit to his guilt and the elements of the crime charged.
15 Does either counsel disagree or think that any
16 additional study of this issue is warranted at this time?
17 MR. KITCHENS: No, your Honor.
18 MR. EGBASE: No, your Honor.
19 THE COURT: And just so the record reflects it,
20 Mr. Kitchens and Mr. Egbase both said "no" or "no, your
21 Honor," at the same time and it may not have gotten picked up
22 perfectly by the record.
23 In that case, Mr. Kitchens, let me go ahead and let
24 you respond as far as sentencing to the defense argument.
25 MR. KITCHENS: Thank you, your Honor.
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 20 of 44
19
1 We think in light of those statements, we are at a
2 guideline range of 27 to 33 months, giving Mr. Benoit credit
3 for acceptance of responsibility. And we understand, and
4 we'll talk about this, that he has, you know, a certain view
5 of his role. But our view is, and as he just confirmed, that
6 he very much accepts that he understood that there was a fraud
7 and that he worked to facilitate that loan. And we'll talk
8 about really what would have been the benefits to him as part
9 of that scheme.
10 But the government recommendation in this case is a
11 27-month sentence, which is the low end of that guidelines
12 range. We think that low end properly accounts for
13 Mr. Benoit's conduct after charging, which has been largely
14 constructive, as well as his history and characteristics,
15 which show fairly minimal criminal history and certainly
16 nothing related to fraud before this.
17 But we do believe that a guideline sentence is
18 necessary under Section 3553(a) to properly account for the
19 seriousness of the offense, the need for deterrence, as well
20 as the need to avoid unwarranted sentencing disparities.
21 So we understand the defendant's reasoning for his
22 request for a downward departure or variance, but we don't
23 think ultimately that it's supported by the facts in the law
24 and that a guideline sentence here is appropriate.
25 In terms of the seriousness of the fraud, there's a
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 21 of 44
20
1 couple aspects of this. First is the fact that this was a
2 scheme that targeted a government aid program at a time really
3 of national crisis. And I don't think that is overstating it
4 one bit.
5 What the defendant and his co-conspirators did is
6 they exploited a COVID relief fund that by its very design was
7 meant to streamline the normal due process for applying for
8 loans and getting bank loans in order to get critical funds to
9 small businesses in need as quickly as possible.
10 Your Honor I'm sure recalls kind of the fears that
11 happened in the immediate aftermath of the pandemic sweeping
12 through last March, from March 2020 when there was genuine
13 fears about the economy collapsing, as the world entered a
14 shutdown for the sake of public health. And we saw as a
15 result that unemployment immediately skyrocketed to its worse
16 levels since the Great Depression.
17 The Paycheck Protection Program was set up really as
18 a lifeline for businesses and by extension their employees to
19 incentivize employment and to try to address that problem and
20 give people an opportunity to make a living and make their
21 ends meet. The need at that time could not have been greater
22 for those funds. And the program did that by both matching a
23 massive amount of funding, hundreds of millions of dollars,
24 with a streamlined application process that was designed to
25 send relief to those most in need as quickly as possible.
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 22 of 44
21
1 The fact that in this case Mr. Benoit and his
2 co-conspirators were willing to engage in a scheme that took
3 advantage of those efforts by the government to keep our
4 citizens, you know, able to make their ends meet underscores,
5 I think, the extent of the greed involved in this scheme.
6 The dollar amount here to some extent really
7 understates the harm because he did not just steal money from
8 the government or from the bank in this case that ultimately
9 extended the loan, but each dollar that was taken as a result
10 of this PPP loan was a dollar that was not available to the
11 intended beneficiaries of this relief program, which were the
12 struggling small businesses that needed a lifeline and needed
13 support to try to keep their employees on the payroll. This
14 is a significant and serious offense that happened and really
15 struck at a time when our nation was at one of its most
16 vulnerable points.
17 The second aspect of this, and I've referenced this
18 briefly earlier, was the fact that the defendant engaged in a
19 separate unrelated scheme to apply for a fraudulent EIDL loan.
20 That was the Economic Injury Disaster Loan program. And
21 that's covered in paragraph 95 of the PSR, which there's no
22 objection to that. It describes the fact that Mr. Benoit
23 obtained two fraudulent loans under the EIDL program that
24 exceeded about $250,000.
25 Now, he submitted that application right around the
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 23 of 44
22
1 same time period in which he submitted the PPP application
2 that led to the charges in this case. It was a month before
3 that he submitted the loan for Premier Choice Office Supplies
4 for this EIDL program that happened a month before the PPP
5 loan program that we're talking about in this case.
6 I think the fact that we're dealing with not one but
7 three fraudulent loans really shows that this is a crime of
8 deliberation and calculation over a period of time. This is
9 not an isolated event, but this was a pattern of efforts by
10 Mr. Benoit to take advantage of disaster relief programs set
11 up by the government, which they saw essentially as an easy
12 mark given the desperation to get those funds out to people
13 who really needed the relief. And that in itself, again,
14 supports a higher sentence.
15 I think all that ties into the second 3553(a) factor,
16 which is the need for general deterrence given the nature of
17 the crime. Now, I don't think specific deterrence is a
18 particularly big factor here in light of the defendant's
19 relatively minimal criminal history. But given the nature of
20 the harm caused, the need for deterrence is high not because
21 of the defendant's background but really because of the nature
22 of the offense, and that's where general deterrence is a
23 critical factor here.
24 The Eleventh Circuit has a long line of cases where
25 it has noted the importance of general deterrence in fraud
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 24 of 44
23
1 cases, including the Coleman case and Hays case. And the
2 reasoning behind that really holds true here, that these are
3 really crimes of opportunity conducted by cool and rational
4 actors that if they do not get a significant sentence that
5 really expresses the message that they will be punished for
6 engaging in this kind of conduct, they're likely to engage in
7 a similar deliberation down the road and to try to do it in
8 the future, or other people will look at that and decide, you
9 know, cost benefits support trying to engage in a similar
10 scheme. And I think that really is true in the case of these
11 COVID relief programs.
12 As we discussed, the federal government really pushed
13 to get the relief funds out as quickly as possible and that
14 meant, of course, it came as a sacrifice, an oversight. I
15 think an audit that came out from the Small Business
16 Administration in December of 2020 found that there were over
17 2 million loans in its estimation that were approved for
18 nearly $200 million of funding that were potentially not in
19 conformance with the CARES Act requirements.
20 Another study, just looking in the news from a few
21 weeks ago, reported that about 15 percent of the overall loans
22 obtained from the PPP program were likely fraudulent.
23 The DOJ, of course, for its part, as well as its law
24 enforcement partners, have been working constantly since
25 last -- the spring of 2020 to uncover PPP loan fraud and to
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 25 of 44
24
1 really prosecute it in an effort to deter it. And for all
2 that effort, you know, the department nationwide has managed
3 to prosecute a few hundred people for PPP loan fraud, but
4 we're at that point we're talking about a few hundred people
5 compared to literally more than a million loans that likely
6 were fraudulent. That means that the government's ability to
7 enforce this as a criminal matter has barely been able to
8 scratch the surface given that the full extent of the PPP
9 fraud is likely something that will never be determined, much
10 less prosecuted by the government, and that heightens the need
11 in cases like this to send a proper message when that fraud is
12 detected and is prosecuted.
13 The last factor I want to mention is the need to
14 avoid unwarranted sentencing disparities. In this case the
15 Court has sentenced one defendant already. That was Kahlil
16 Green. Now, he is not similarly situated to Mr. Benoit, and
17 it really is a result of a different history and
18 characteristics of the two defendants.
19 Mr. Green, the Court may recall, had a fairly
20 extensive criminal history. And as a result, he was in
21 Criminal History Category 4. And his guidelines range was 41
22 to 51 months as a result. But he had the same role in the
23 offense as Mr. Benoit. He was a business owner. His claims
24 were very similar to Mr. Benoit's in terms of he provided the
25 business name, had a rough understanding of what the scheme
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 26 of 44
25
1 was but did not fill in the particulars in terms of making the
2 specific claims for the number of employees, the amount of
3 revenue, various other facts like that.
4 And one other differentiating factor again is that
5 Mr. Benoit in this case, unlike what the evidence showed with
6 Mr. Green, applied for the separate fraudulent EIDL loans,
7 which are discussed in paragraph 95.
8 Now, Mr. Green, he received a low-end sentence, which
9 in his case was 41 months. And, again, the higher guidelines
10 range appropriately reflected the fact that he had a more
11 extensive criminal history.
12 It is the government's position that Mr. Benoit
13 should similarly receive a low-end guideline sentence. It's
14 appropriate given the nature of their very similar roles in
15 the offense and their similar understanding of the wrongdoing
16 that they conducted with the PPP scheme.
17 I'm going to just briefly address a couple of
18 additional arguments that have been raised by Mr. Egbase both
19 in the sentencing memorandum as well as his argument this
20 morning. There was an effort in both, I think, by Mr. Benoit
21 to somewhat minimize the harm that he caused by noting that he
22 really did not receive funds as a result of this PPP loan
23 fraud. I think the memo says that he did not touch or spend a
24 cent on himself from the fraud.
25 The memo, to its credit, however, I think
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 27 of 44
26
1 acknowledges and concedes the reason why this was the case,
2 which was that the government fairly early in its
3 investigation froze the account where a substantial portion of
4 the funds were still sitting at Mr. Benoit's disposal. And,
5 in fact, I think the record again shows that Mr. Benoit would
6 have retained a substantial amount of the funds if the
7 government had not at an early stage detected the fraud and
8 stopped the scheme.
9 Mr. Benoit himself in the interview with the
10 government told Special Agent Stites with the FBI that his cut
11 of the fraudulent loan was supposed to be about 20 percent of
12 the loan proceeds. And there was an e-mail that was sent from
13 Mr. Baptiste to Mr. Benoit that stated that his cut from the
14 fraudulent loan would be over $300,000. And that's consistent
15 I think if you look at the withdrawals that are discussed
16 after the loan is funded in paragraph 92 of the PSR. And that
17 shows that after the funds come in, the fraudulent funds come
18 in from the loan application, that Mr. Benoit makes a series
19 of transactions, transfers money to various other
20 co-conspirators, and at the end of all that there's more than
21 $300,000 left in the account.
22 According to the plea agreement it notes and
23 recognizes that he had over $450,000 seized in two separate
24 bank accounts in forfeiture as part of his role in the scheme.
25 I think all of that means that -- it does not suggest that
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 28 of 44
27
1 Mr. Benoit deserves somehow a break because the government in
2 this case was able to do its job and caught the fraud at an
3 early stage before he was able to spend assets, launder the
4 assets or do anything else to disburse the funds.
5 In addition to that, of course, there's this claim
6 about Mr. Benoit's medical conditions. Those medical
7 conditions are also discussed in the PSR itself. And I do
8 not mean to minimize those conditions and how they affect
9 Mr. Benoit when I would make an argument on this front. But I
10 think the language from the guidelines in 5H1.4 is telling and
11 instructive to the Court about how rare a downward departure
12 is in these circumstances.
13 It notes that medical conditions essentially should
14 be grounds for downward departure only if there's an
15 extraordinary physical impairment, such as the case of a
16 seriously infirmed defendant. And I also note that those
17 health conditions need to be present in an unusual degree.
18 I think the cases interpreting the guidelines have
19 shown how rare this applies in order to take a defendant like
20 Mr. Benoit out of the heartland of many other defendants who
21 also suffer from their share of physical ailments. I think
22 the facts of the defendant's own cases help to underscore this
23 in pages six through eight of his memo.
24 Just to cite some of the examples from those cases,
25 you're dealing with one case with a double amputee that needed
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 29 of 44
28
1 medical care, a defendant that was recovering from a brain
2 tumor and had ongoing health issues. There's a discussion of
3 a 78-year-old defendant with depression and coronary artery
4 disease.
5 The record here I think just in comparison to those
6 other cases and the cases that find a downward variance or
7 departure based on health conditions I think is just a far cry
8 from those extraordinary physical impairments you see in those
9 other cases.
10 He mentions the gastric sleeve from 13 years ago.
11 There's no statement in either the PSR or medical evidence
12 provided about how that could not be treated in BOP custody.
13 The other conditions in terms of high blood pressure and
14 depression are more recent conditions, but we also do not have
15 any more documentation to describe really the impact of those
16 as well as the inability of BOP to address that. And that's
17 where I think, again, in addition to the missing medical
18 documentation what we're missing from the argument is any
19 showing that the Bureau of Prisons would be unable to care for
20 the defendant when he's put in custody.
21 The Health Services Division of the Bureau of Prisons
22 has more than 3,000 healthcare professionals, including 750
23 Public Health Service staff that are commissioned officers
24 detailed from HHS. The Bureau of Prisons also has, of course,
25 a record of treating inmates with serious health conditions,
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 30 of 44
29
1 including, of course, it has clinical practice guidelines for
2 the treatment of depression.
3 As part of that, during the initial classification
4 and designation stage after a sentence is imposed the Bureau
5 of Prisons evaluates the medical care that may be needed by
6 any defendant and assigns and makes to appropriate
7 institutions that are capable of providing the medical care
8 that may be required. It has in addition to that medical
9 referral centers that it can send people outside of the prison
10 system.
11 So these are not uncommon conditions that Mr. Egbase
12 has raised. And there's no showing that the Bureau of Prisons
13 medical facilities are unable to treat these conditions or
14 that these conditions are so extraordinary that he would need
15 to be treated outside of the BOP system.
16 If, however, there were ever a situation where his
17 health conditions were not able to be addressed adequately in
18 incarceration, there's still a fail-safe, which is in
19 Section 3582(c). And that provides, again, the ability for
20 the Bureau of Prisons to seek a modification or sentence
21 reduction if there's a compelling reason for reduction,
22 including the fact -- and I know the Court is well aware of
23 this since there's been many pleas for this in light of the
24 pandemic, changes that may result due to a defendant's health
25 condition certainly can support a motion for a reduction if
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 31 of 44
30
1 it's determined that the Bureau of Prisons is not adequately
2 suited to address those conditions.
3 So overall we believe that a guideline sentence, and
4 specifically that low-end 27-month sentence, properly reflects
5 the seriousness of the offense and the magnitude of the harm
6 to the many, many businesses that would have needed those --
7 that desperately needed PPP loan funding, as well as
8 reflecting the need for specific and general deterrence in
9 this case. We think that's a fair result and we think that's
10 a proper result under Section 3553(a).
11 THE COURT: Thank you, Mr. Kitchens.
12 Is there any other matter that the Court needs to
13 take up or anything else from either side before I issue a
14 sentence in this case, counsel?
15 MR. KITCHENS: Not from the government, your Honor.
16 MR. EGBASE: No, your Honor, except to just add that
17 if the Court is inclined to impose incarceration, that
18 Mr. Benoit is requesting electronic monitoring or home
19 incarceration. And the reason for that is that -- I heard the
20 government's arguments and we are still in a pandemic and
21 Mr. Benoit has a preexisting condition. I don't think he'll
22 be suitable to be in a group incarceration or in a prison at
23 this point. I would like the Court to take that into
24 consideration.
25 THE COURT: All right. Thank you, Mr. Egbase.
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 32 of 44
31
1 Mr. Benoit, if you could please stand, sir. Thank
2 you.
3 Pursuant to the Sentencing Reform Act of 1984, it's
4 the judgment of the Court that you, Bern Benoit, are hereby
5 committed to the custody of the Federal Bureau of Prisons to
6 be imprisoned for a term of 27 months custody as to Count 7.
7 You must pay to the United States a special
8 assessment of $100 due immediately. The assessment should be
9 paid to the Clerk, US District Court, Northern District of
10 Georgia.
11 The Court finds that you do not have the ability to
12 pay a fine and cost of incarceration. The Court will,
13 therefore, waive the fine and cost of incarceration in this
14 case.
15 It's further ordered that you shall make restitution
16 in the amount of $1,105,217 for distribution to the following
17 victims:
18 Cross River Bank Legal Department, 400 Kelby
19 Street, 14th Floor, Fort Lee, New Jersey, 07024,
20 legaldepartment@crossriverbank.com, $830,417;
21 Also the US Small Business Administration, the
22 address will be provided by the government, in the amount of
23 $274,800.
24 Restitution shall be paid in full immediately.
25 You must pay the above-noted financial penalties in
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 33 of 44
32
1 accordance with the schedule of payment sheet of the judgment.
2 Payment of criminal monetary penalties is due during
3 the period of imprisonment. All criminal monetary penalties,
4 except those payments made through the Federal Bureau of
5 Prisons Inmate Financial Responsibility Program, are to be
6 made payable to the Clerk, US District Court,
7 2211 US Courthouse, 75 Ted Turner Drive, Southwest, Atlanta,
8 Georgia, 30303.
9 Any balance that remains unpaid at the commencement
10 of the term of supervision shall commence within 60 days after
11 release from imprisonment on the following terms:
12 Payable at a rate of no less than 250 monthly to the
13 US District Court Clerk.
14 You must notify the Court of any changes in economic
15 circumstances that might affect the ability to pay this
16 financial penalty.
17 The Court determines that you do not have the ability
18 to pay interest and it's ordered that the interest requirement
19 is waived for restitution.
20 Upon release from imprisonment you will be on a term
21 of supervised release for five years. And I want to explain
22 those terms to you as well, but, Mr. Benoit, you can be seated
23 for that portion of my sentence.
24 You must comply with the mandatory conditions of
25 release, including you must not commit another federal, state
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 34 of 44
33
1 or local crime.
2 You must not unlawfully possess a controlled
3 substance.
4 You must refrain from any unlawful use of a
5 controlled substance.
6 You must submit to one drug test within 15 days of
7 release from imprisonment, and at least two periodic drug
8 tests thereafter as determined by the Court.
9 You must cooperate in the collection of DNA as
10 directed by the probation officer.
11 You must make restitution in accordance with 18 USC,
12 Sections 3663 and 3663(a) or any other statute authorizing a
13 sentence of restitution.
14 As part of your supervised release you must comply
15 with the standard conditions of supervision. These conditions
16 are imposed because they establish basic expectations for your
17 behavior while on supervision and identify the minimum tools
18 needed by a probation officer to keep informed, report to the
19 court and bring about improvements in your conduct and
20 condition. Standard conditions of supervision will be
21 included in the judgment.
22 You must comply with the following special conditions
23 during the term of supervised release:
24 You must make full and complete disclosure of your
25 finances and submit to an audit of your financial documents at
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 35 of 44
34
1 the request of your probation officer.
2 You must provide your probation officer with full and
3 complete access to any requested financial information and
4 authorize the release of any financial information.
5 The probation office may share the financial
6 information with the United States Attorney's Office.
7 You must not incur new credit card charges or open
8 additional lines of credit without the approval of the
9 probation officer.
10 You must participate in a mental health treatment
11 program and follow the rules and regulations of that program.
12 Such program may require that you submit to an
13 evaluation and/or testing. The probation officer, in
14 consultation with the treatment provider, will supervise your
15 participation in the program, provider, location, modality,
16 duration, intensity and et cetera. You must pay all or part
17 of the cost of the program based on your ability to pay unless
18 excused by the probation officer.
19 You must take all mental health medication prescribed
20 by your treating provider.
21 You must pay for all or part of the cost of
22 medication based on your ability to pay unless excused by the
23 probation officer.
24 You must refrain from excessive use of alcohol.
25 You must submit your person, property, house,
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 36 of 44
35
1 residence, vehicle, papers, computers, other electronic
2 communications or data storage devices or media or office to a
3 search conducted by a United States Probation Officer.
4 Failure to submit to a search may be grounds for revocation of
5 release. You must warn any other occupants that the premises
6 may be subject to searches pursuant to this condition.
7 An officer may conduct a search pursuant to this
8 condition only when reasonable suspicion exists that you
9 violated a condition of your supervision and that areas to be
10 searched contain evidence of this violation. Any search must
11 be conducted at a reasonable time and in a reasonable manner.
12 You must permit confiscation and/or disposal of any
13 material considered to be contraband or any other items which
14 may be deemed to have evidentiary value of violations of
15 supervision.
16 And given that this is a remote video conference, I
17 assume that the defense is requesting a voluntary surrender.
18 And I assume that the government does not oppose that
19 voluntary surrender. Is that correct, Counsel?
20 MR. KITCHENS: We do not oppose it, your Honor.
21 THE COURT: And, Mr. Egbase, do you have any
22 suggested time range for when he will surrender?
23 MR. EGBASE: I'm -- just a minute, your Honor. I
24 would like to confer with my client, please.
25 THE COURT: Very well. If you'll mute your line.
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 37 of 44
36
1 (Pause in the proceedings)
2 MR. EGBASE: I'm back, your Honor, if the Court can
3 hear me.
4 THE COURT: Yes.
5 MR. EGBASE: My client is requesting 30 days, your
6 Honor.
7 THE COURT: Any objection, Mr. Kitchens?
8 MR. KITCHENS: No. No, your Honor.
9 THE COURT: Very well. The defendant is to report
10 for service of sentence in 30 days -- no later than 30 days
11 from today.
12 Release conditions previously established will
13 continue to apply.
14 Failure to report for service of the sentence is a
15 criminal offense.
16 The Court does not have the authority to select the
17 detention facility but can recommend a specific detention
18 facility and the Bureau of Prisons will ultimately decide.
19 Mr. Egbase, any particular requests on behalf of your
20 client?
21 MR. EGBASE: Any facility that is close to the
22 Los Angeles area, your Honor, is okay with my client.
23 THE COURT: Very well.
24 The Court recommends to the Bureau of Prisons that
25 Mr. Benoit be confined in a facility as close to Los Angeles,
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 38 of 44
37
1 California, as possible. And the Court will note that he has
2 significant family and friend ties in that area, so that's
3 particularly warranted in this case.
4 The Court also recommends to the Bureau of Prisons
5 that the defendant be placed in an institution with mental
6 health counseling.
7 This sentence is made in view of the sentencing goals
8 delineated in 18 USC, Section 3553(a), and the parties'
9 arguments as to those factors, including:
10 The nature and circumstances of the offense and the
11 history and characteristics of the defendant;
12 The need for the sentence imposed to reflect the
13 seriousness of the offense, to afford adequate deterrence and
14 to protect the public;
15 The kinds of sentences available;
16 The kinds of sentence in the sentencing range
17 established for the applicable category of offense committed
18 as set forth in the sentencing guidelines;
19 Any pertinent policy statement;
20 The need to avoid sentencing disparity;
21 And the need to provide restitution to victims.
22 This sentence meets the criteria of punishment,
23 deterrence and incapacitation and is sufficient but not
24 greater than necessary to comply with the directives of
25 Section 3553(a).
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 39 of 44
38
1 Based on these considerations, I find that this
2 sentence is just and appropriate, particularly based on
3 several factors that I found particularly important. One is
4 the amount at issue here, which was substantial; however, I
5 recognize and accept the argument that Mr. Benoit was not the
6 most culpable actor in this scheme.
7 It was also important to me to learn about
8 Mr. Benoit, both in the presentence report as well as the many
9 letters, Mr. Egbase, that you had sent in on behalf of
10 Mr. Benoit. I thought those were very compelling. It painted
11 a picture for me of someone who is a good friend and a good
12 son, particularly to his mother.
13 I was also moved by the fact that he unfortunately
14 grew up without having a father in his life, which is
15 something that I see quite often in sentencing cases
16 unfortunately. So I'm sorry that that was his situation as
17 well.
18 MR. EGBASE: Thank you, your Honor.
19 THE COURT: And I'm also cognizant of his both
20 physical and mental health issues; however, I do not think
21 they rise to the level of being an extraordinary physical
22 impairment such that would allow a departure under guidelines
23 5H1.4, nor do I believe the variance that was requested should
24 be given in this case given my review of the various factors
25 at issue. However, I'm cognizant of those physical and mental
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 40 of 44
39
1 impairments. And one reason I'm at the very low end of the
2 guideline range is because I do take some pause really on the
3 mental health aspect of it. I understand that he did have
4 some issues fairly recently, and he's now in counseling with a
5 psychiatrist that seems to be helping him.
6 So it's not lightly, I would like Mr. Benoit and you
7 to know, that I issue a sentence that includes a term of
8 confinement. In a perfect world he would keep sessions with
9 the same -- with the same counselor. I'm hopeful that they'll
10 be able to continue that counseling for him while he's
11 confined but someone who can do hopefully as good of a job.
12 But I'm wary of that and understand the situation certainly.
13 Therefore, I will not be departing or varying in this sentence
14 as announced.
15 Before I advise the defendant of his appeal rights,
16 does the government or defendant have any further objections
17 to the findings of the Court, the guideline calculation or to
18 the sentence or the manner in which it's been pronounced?
19 MR. EGBASE: No, your Honor.
20 MR. KITCHENS: No objections, your Honor, but just
21 want to note there's a consent preliminary order of forfeiture
22 that's been entered in this case. That's Docket Number 101.
23 And that covers two separate JPMorgan Chase Bank accounts.
24 $431,408.28 in one account. And $30,025.08 in the other
25 JPMorgan Chase account. We would just ask that the forfeiture
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 41 of 44
40
1 be incorporated as part of the judgment.
2 THE COURT: All right. Not hearing any objection
3 from Mr. Egbase, I will grant that request.
4 And I think I said this, but in an abundance of
5 caution I also note that this sentence meets the criteria of
6 punishment, deterrence and incapacitation and is sufficient
7 but not greater than necessary to comply with the directives
8 of Section 3553(a).
9 Mr. Benoit, you can appeal your conviction if you
10 believe your guilty plea was somehow unlawful or involuntary
11 or if there is some other fundamental defect in the
12 proceedings that was not waived by your guilty plea.
13 You also have a statutory right to appeal your
14 sentence under certain circumstances, particularly if you
15 think the sentence is contrary to law. However, a defendant
16 may waive those rights as part of a plea agreement, and you've
17 entered into a plea agreement which, with very limited
18 exceptions, waives most of your rights to appeal the sentence
19 itself. Such waivers are generally enforceable, but if you
20 believe the waiver is unenforceable, you can present that
21 theory to the Appellate Court.
22 With few exceptions, any notice of appeal must be
23 filed within 14 days of a judgment being entered in your case.
24 If you're unable to pay the cost of your appeal, you
25 may apply for leave to appeal in forma pauperis or without
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 42 of 44
41
1 payment of fees. If you so request, the Clerk of Court will
2 prepare and file a notice of appeal on your behalf. On appeal
3 you may also apply for court-appointed counsel.
4 If you have any further questions about your right to
5 appeal, I'm sure that Mr. Egbase would be happy to advise you
6 further on this matter.
7 Mr. Benoit, do you have any further questions about
8 anything I've said today at this sentencing hearing, sir?
9 THE DEFENDANT: No, your Honor.
10 THE COURT: Counsel, anything else further that we
11 need to discuss?
12 MR. EGBASE: No, your Honor.
13 MR. KITCHENS: No, your Honor.
14 THE COURT: All right. Good to see both of you.
15 Ms. Walker, Ms. Coudriet and Officer Ridley, thank
16 you for your assistance in today's proceedings as well.
17 Mr. Benoit, best of luck to you, sir. I know that
18 you have many people out there, friends and family, who care
19 about you very much and that you're important to them and
20 their lives. And I wish you future success. And I hope that
21 you're able to complete this term of imprisonment without
22 issue and get back to your family and friends that I know need
23 you very much.
24 That concludes this proceeding.
25 Thank you, everyone.
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 43 of 44
42
1 (PROCEEDINGS REPORTED WERE CONCLUDED 11:20 AM.)
2 ___________________________
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
Case 1:20-cr-00296-JPB-CMS Document 894 Filed 02/02/24 Page 44 of 44
43
1 C E R T I F I C A T E
2
3 UNITED STATES DISTRICT COURT
4 NORTHERN DISTRICT OF GEORGIA
5
6 I do hereby certify that the foregoing pages are a true
7 and correct transcript of the proceedings taken down by me in
8 the case aforesaid.
9
This the 23rd Day of January, 2024.
10
11
12
13
14 ________________________________
15 PENNY PRITTY COUDRIET, RMR, CRR
OFFICIAL COURT REPORTER
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT - OFFICIAL CERTIFIED TRANSCRIPT
File and source
- File
- gov.uscourts.gand.292223.894.0.pdf
- Size
- 329,712 bytes
- SHA-256
- 5d8d1d91ec45720c042b687f7fa36721d82d0c58139e86fe8fcfb3bba32ed2f2
- Original
- PACER (login required)